This is an ongoing series on policy proposed by the U.S. Environmental Protection Agency to bring its ESA-FIFRA process into compliance. 

If you have been to a crop meeting lately, you’ve likely heard an update on proposals put out by the Environmental Protection Agency (EPA) to address compliance issues with the Endangered Species Act (ESA).  

Of these are a series of mitigation strategies specifically targeted at groups of pesticides. The first of these, the draft Herbicide Strategy, was released by the EPA on July 24, 2023, intended to reduce potential environmental impacts from the use of herbicides for over 900 listed and endangered species and their designated critical habitats. 

Restrictions and early mitigations proposed by the draft Herbicide Strategy will largely impact the agricultural industry, and it is important for pesticide applicators to be aware.  

“Rest assured, virtually every single herbicide user in the lower 48 states is going to have additional compliance mitigations with this proposal,” said Kyle Kunkler, director of government affairs with the American Soybean Association. 

While a finalized version of the draft Herbicide Strategy is expected later this year, the EPA is not stopping there. The agency is also drafting proposals for insecticides and fungicides. 

Related:EPA policy and proposals: Vulnerable Species Pilot Program

“More and more, in the months to come farmers and applicators are going to have to check these restrictions to see what their products are subject to,” Kunkler added. 

What herbicide mitigations can farmers expect? 

The draft Herbicide Strategy outlines early mitigations the EPA expects to include on herbicide product labels. These mitigations complement those of other EPA proposals according to the Agency’s workplan released in 2022. 

For the draft Herbicide Strategy, the EPA established a three-step framework that:  

From there, early mitigations fall into two general categories: those to prevent or reduce spray drift and those to prevent or reduce runoff and erosion. 

Spray drift mitigations are things like windbreaks and hedgerows, the use of hooded sprayers, and reduction of application rate depending on the level of risk.  

Kunkler noted the challenges that come with EPA’s buffer zone requirements. He said, “Potentially for every spray, you could be looking at up to 200-foot buffers for ground sprays and up to 500-foot buffers for aerial applications. We are potentially talking about a lot of acreage that could go untreated due to down-wind spray drift buffers because of these proposals.” 

Related:EPA issues existing stocks order for dicamba

Picklist point system generates confusion 

Mitigations targeted at runoff and erosion also pose challenges. These mitigations are determined by a proposed point system. Brigit Rollins, staff attorney at the National Agricultural Law Center, explained this point system – where efficacy points vary by practices like cover crops, filter strips, reduced tillage, and contour terracing.  

Rollins said a pesticide applicator will have to meet the minimum number of points before spraying certain products on certain acres. “For example, if you are applying an herbicide that requires six points to reduce erosion and runoff, there will be a menu of different mitigation measures that the EPA is calling a picklist. 

“Each of those mitigation measures will have a point value tied to it. The farmer or pesticide applicator will be responsible for ensuring the point requirements are met before they can spray.” 

Points also vary by location. Kunkler noted that six points would be required for most users under general restrictions, while herbicide users in Pesticide Use Limitation Areas (PULAs) could need nine or more points to meet requirements. 

“It is complex to understand a farmer’s compliance burden with this proposal. Trying to figure out what you must do is very challenging to determine how many points you need for your field and how you get there,” Kunkler said. 

“If you are short, you would have to adopt more restrictions to get to the minimum number of points needed, depending on the herbicides you are trying to use to manage the crop.” 

Kunkler noted there are exemptions to the draft Herbicide Strategy, but those further complicate the matter. For example, depending on proximity to a designated critical habitat, half of one field may be exempt while the other half would require mitigation. 

Once EPA integrates these restrictions into herbicide registrations, farmers can find details on the Agency’s Bulletins Live! Two website. 

How will the herbicide strategy impact farmers? 

Kunkler said that while the ASA stands behind the EPA’s compliance with the law, the ASA is not convinced that the very conservative mitigation proposals fit the bill.  

“We [at the ASA] are under the impression and from our analysis that these would impose fundamental changes to the way that farming takes place in America,” Kunkler said.  

“We are very concerned by these proposals and think it could impose significant restrictions and in some cases might entirely prohibit farmers from being able to use certain pesticides, certain classes of pesticides, or in some cases pesticides altogether.” 

As a voice for U.S. soybean farmers, Kunkler said the ASA is engaging with the EPA, Fish and Wildlife Service, and the USDA. Additionally, he reported the ASA has actively participated in public comments on proposed EPA pesticide mitigation documents are, and they are working with Congress to achieve better appropriation language and oversight of the policies. 

Kunkler stressed the need for better PULA maps and better science behind these pesticide mitigations. He said, “One of the things we are strongly pressing EPA to do is to use the data and science available to them. We think the law requires EPA to do that, and with these broad and conservative mitigation measures, they are not currently doing so. 

“I don’t want to be a downer,” he continued. “I am optimistically cautious that there are some good common-sense solutions to fixing this problem and a lot of them are based in good science, good evidence, and good data.”  

While public comment has closed for the draft Herbicide Strategy, farmers can expect more EPA mitigations to be released for public comment in 2024. 

Rollins noted that the National Agricultural Law Center is closely watching for updates and releases and will be featured in their twice-monthly newsletter, The Feed.